What is mediation?

The demands and stress of facing the court process can often be overwhelming.  Mediation is an alternative to court that may be more suited to your case.  Mediation is a voluntary process in which all parties act in good faith.  The process is typically quicker than going to court and allows you to have much more control over the process and the result.  It can bring people together in a more cohesive and co-operative structure.  This type of shared process can save time, limit the level of animosity between parties, and is often much more cost effective than a court proceeding.

Whether you require assistance with coming to agreement on a marriage or cohabitation contract at the outset of your relationship, or you need assistance with finding a fair and reasonable resolution to custody, parenting, support or issues relating to the distribution of property, we can help.  We have lawyers in our office who have completed special training relating to assisting you with a mediated resolution, whether by supporting you through your mediation or presiding over your mediation as the mediator.  We will help you identify key concerns and find common ground.

Upon reaching resolution we will draft a final agreement, which will then be reviewed by your own lawyer so that you can confirm that your rights have been protected and the resolution is suitable for you. Seeing your own lawyer and signing the agreement in front of that lawyer is a formal requirement necessary pursuant to the Family Property Act in order to ensure that any final agreement that is reached is enforceable by the courts in the event one party chooses not to abide by the terms of the agreement.

What does the mediation process look like?

Before attending mediation the mediator generally requires you and your spouse/partner to exchange financial disclosure and provide copies to the mediator.  Generally, mediation is a “client-centred” process.  This means that you will be heavily involved in the settlement discussion.  The mediator will ask questions of each of you so as to help each party fully understand and appreciate what is important to each of you and why this is so.  

Through a series of meetings you will discuss each issue relevant to you (children, support, property division etc.) in the hope you and your spouse/partner can come to a final resolution on all matters.  If you are able to agree the mediator will prepare a separation agreement containing the terms agreed to.  Each of you will then need to meet separate and apart with your own independent lawyer to sign the agreement.  Only by following this process of meeting with your own separate lawyers will your agreement be deemed enforceable by the court.

Do I need a lawyer if I go to mediation?

While you are always able to choose whether or not you want to retain a lawyer to accompany you to mediation, it is not necessary.  An expert mediator will be able to ensure that the process is fair without the need to have the assistance of a lawyer during the mediation meetings.  Many people choose to have a lawyer to discuss matters with outside the mediation process or will see a lawyer before the mediation begins to give them some preliminary information in advance.  If you do choose to see a mediator without a lawyer we recommend you engage a mediator that is trained in family law.  This is because there are unique intricacies and nuances in family and divorce law that it is important your mediator understands and is able to easily explain to you.

What if we don’t agree at mediation? What’s next?

If you are unable to agree to terms during the mediation the next step is to engage a competent lawyer to assist you.  This does not mean that you are left with no alternative but to proceed with court.  There are other non-litigious methods that can be used to try to resolve matters outside the court process, including providing the other side with a written proposal and attending a settlement meeting.  The settlement meeting is attended by both parties and their lawyers. These meetings are sometimes referred to as a 4-way meeting.  These can be quite productive if both parties have a desire to be reasonable as it provides an opportunity to hear the legal position of both sides and get immediate feedback.

If these type of settlement negotiations fail, or your spouse/partner is not being reasonable you may have no choice but to proceed with court.